Federalist No. 38

Author: James Madison

Date: January 15, 1788

Subject: The Incoherence of the Objections to the new Plan Exposed and a Continuing Discussion on the Previous Subject

To the People of the State of New York:

IT IS not a little remarkable that in every case reported by
ancient history, in which government has been established with
deliberation and consent, the task of framing it has not been
committed to an assembly of men, but has been performed by
some individual citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government
of Crete, as Zaleucus was of that of the Locrians. Theseus
first, and after him Draco and Solon, instituted the government
of Athens. Lycurgus was the lawgiver of Sparta. The foundation
of the original government of Rome was laid by Romulus, and
the work completed by two of his elective successors, Numa
and Tullius Hostilius. On the abolition of royalty the consular
administration was substituted by Brutus, who stepped forward
with a project for such a reform, which, he alleged, had been
prepared by Tullius Hostilius, and to which his address obtained
the assent and ratification of the senate and people. This
remark is applicable to confederate governments also. Amphictyon,
we are told, was the author of that which bore his name. The
Achaean league received its first birth from Achaeus, and its
second from Aratus. What degree of agency these reputed lawgivers
might have in their respective establishments, or how far they
might be clothed with the legitimate authority of the people,
cannot in every instance be ascertained. In some, however,
the proceeding was strictly regular. Draco appears to have
been intrusted by the people of Athens with indefinite powers
to reform its government and laws. And Solon, according to
Plutarch, was in a manner compelled, by the universal suffrage
of his fellow-citizens, to take upon him the sole and absolute
power of new-modeling the constitution. The proceedings under
Lycurgus were less regular; but as far as the advocates for
a regular reform could prevail, they all turned their eyes
towards the single efforts of that celebrated patriot and sage,
instead of seeking to bring about a revolution by the intervention
of a deliberative body of citizens. Whence could it have
proceeded, that a people, jealous as the Greeks were of their
liberty, should so far abandon the rules of caution as to place
their destiny in the hands of a single citizen? Whence could
it have proceeded, that the Athenians, a people who would not
suffer an army to be commanded by fewer than ten generals,
and who required no other proof of danger to their liberties than
the illustrious merit of a fellow-citizen, should consider
one illustrious citizen as a more eligible depositary of the
fortunes of themselves and their posterity, than a select body
of citizens, from whose common deliberations more wisdom, as
well as more safety, might have been expected? These questions
cannot be fully answered, without supposing that the fears
of discord and disunion among a number of counsellors exceeded
the apprehension of treachery or incapacity in a single individual.
History informs us, likewise, of the difficulties with which
these celebrated reformers had to contend, as well as the expedients
which they were obliged to employ in order to carry their reforms
into effect. Solon, who seems to have indulged a more temporizing
policy, confessed that he had not given to his countrymen the
government best suited to their happiness, but most tolerable
to their prejudices. And Lycurgus, more true to his object,
was under the necessity of mixing a portion of violence with
the authority of superstition, and of securing his final success
by a voluntary renunciation, first of his country, and then
of his life. If these lessons teach us, on one hand, to admire
the improvement made by America on the ancient mode of preparing
and establishing regular plans of government, they serve not
less, on the other, to admonish us of the hazards and difficulties
incident to such experiments, and of the great imprudence of
unnecessarily multiplying them.

Is it an unreasonable conjecture, that the errors which may
be contained in the plan of the convention are such as have
resulted rather from the defect of antecedent experience on
this complicated and difficult subject, than from a want of
accuracy or care in the investigation of it; and, consequently
such as will not be ascertained until an actual trial shall
have pointed them out? This conjecture is rendered probable,
not only by many considerations of a general nature, but by
the particular case of the Articles of Confederation. It is
observable that among the numerous objections and amendments
suggested by the several States, when these articles were submitted
for their ratification, not one is found which alludes to the
great and radical error which on actual trial has discovered
itself. And if we except the observations which New Jersey
was led to make, rather by her local situation, than by her
peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system.
There is abundant reason, nevertheless, to suppose that immaterial
as these objections were, they would have been adhered to with
a very dangerous inflexibility, in some States, had not a zeal
for their opinions and supposed interests been stifled by the
more powerful sentiment of selfpreservation. One State, we
may remember, persisted for several years in refusing her concurrence,
although the enemy remained the whole period at our gates,
or rather in the very bowels of our country. Nor was her pliancy
in the end effected by a less motive, than the fear of being
chargeable with protracting the public calamities, and endangering
the event of the contest. Every candid reader will make the
proper reflections on these important facts.

A patient who finds his disorder daily growing worse, and that
an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters
of different physicians, selects and calls in such of them
as he judges most capable of administering relief, and best
entitled to his confidence. The physicians attend; the case
of the patient is carefully examined; a consultation is held;
they are unanimously agreed that the symptoms are critical,
but that the case, with proper and timely relief, is so far
from being desperate, that it may be made to issue in an improvement
of his constitution. They are equally unanimous in prescribing
the remedy, by which this happy effect is to be produced. The
prescription is no sooner made known, however, than a number
of persons interpose, and, without denying the reality or danger
of the disorder, assure the patient that the prescription will
be poison to his constitution, and forbid him, under pain of
certain death, to make use of it. Might not the patient reasonably
demand, before he ventured to follow this advice, that the
authors of it should at least agree among themselves on some
other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would
he not act prudently in trying the experiment unanimously recommended
by the latter, rather than be hearkening to those who could
neither deny the necessity of a speedy remedy, nor agree in
proposing one?

Such a patient and in such a situation is America at this moment.
She has been sensible of her malady. She has obtained a regular
and unanimous advice from men of her own deliberate choice.
And she is warned by others against following this advice under
pain of the most fatal consequences. Do the monitors deny the
reality of her danger? No. Do they deny the necessity of some
speedy and powerful remedy? No. Are they agreed, are any two
of them agreed, in their objections to the remedy proposed,
or in the proper one to be substituted? Let them speak for
themselves. This one tells us that the proposed Constitution
ought to be rejected, because it is not a confederation of
the States, but a government over individuals. Another admits
that it ought to be a government over individuals to a certain
extent, but by no means to the extent proposed. A third does
not object to the government over individuals, or to the extent
proposed, but to the want of a bill of rights. A fourth concurs
in the absolute necessity of a bill of rights, but contends
that it ought to be declaratory, not of the personal rights
of individuals, but of the rights reserved to the States in
their political capacity. A fifth is of opinion that a bill
of rights of any sort would be superfluous and misplaced, and
that the plan would be unexceptionable but for the fatal power
of regulating the times and places of election. An objector
in a large State exclaims loudly against the unreasonable equality
of representation in the Senate. An objector in a small State
is equally loud against the dangerous inequality in the House
of Representatives. From this quarter, we are alarmed with
the amazing expense, from the number of persons who are to
administer the new government. From another quarter, and sometimes
from the same quarter, on another occasion, the cry is that
the Congress will be but a shadow of a representation, and that
the government would be far less objectionable if the number
and the expense were doubled. A patriot in a State that does
not import or export, discerns insuperable objections against
the power of direct taxation. The patriotic adversary in a
State of great exports and imports, is not less dissatisfied
that the whole burden of taxes may be thrown on consumption.
This politician discovers in the Constitution a direct and
irresistible tendency to monarchy; that is equally sure it
will end in aristocracy. Another is puzzled to say which of
these shapes it will ultimately assume, but sees clearly it
must be one or other of them; whilst a fourth is not wanting,
who with no less confidence affirms that the Constitution is
so far from having a bias towards either of these dangers, that
the weight on that side will not be sufficient to keep it upright
and firm against its opposite propensities. With another class
of adversaries to the Constitution the language is that the
legislative, executive, and judiciary departments are intermixed
in such a manner as to contradict all the ideas of regular
government and all the requisite precautions in favor of liberty.
Whilst this objection circulates in vague and general expressions,
there are but a few who lend their sanction to it. Let each
one come forward with his particular explanation, and scarce
any two are exactly agreed upon the subject. In the eyes of
one the junction of the Senate with the President in the responsible
function of appointing to offices, instead of vesting this
executive power in the Executive alone, is the vicious part
of the organization. To another, the exclusion of the House
of Representatives, whose numbers alone could be a due security
against corruption and partiality in the exercise of such a
power, is equally obnoxious. With another, the admission of
the President into any share of a power which ever must be a
dangerous engine in the hands of the executive magistrate, is
an unpardonable violation of the maxims of republican jealousy.
No part of the arrangement, according to some, is more inadmissible
than the trial of impeachments by the Senate, which is alternately
a member both of the legislative and executive departments,
when this power so evidently belonged to the judiciary department.
``We concur fully,'' reply others, ``in the objection to this
part of the plan, but we can never agree that a reference of
impeachments to the judiciary authority would be an amendment
of the error. Our principal dislike to the organization arises
from the extensive powers already lodged in that department.''
Even among the zealous patrons of a council of state the most
irreconcilable variance is discovered concerning the mode in
which it ought to be constituted. The demand of one gentleman
is, that the council should consist of a small number to be
appointed by the most numerous branch of the legislature. Another
would prefer a larger number, and considers it as a fundamental
condition that the appointment should be made by the President
himself.

As it can give no umbrage to the writers against the plan of
the federal Constitution, let us suppose, that as they are
the most zealous, so they are also the most sagacious, of those
who think the late convention were unequal to the task assigned
them, and that a wiser and better plan might and ought to be
substituted. Let us further suppose that their country should
concur, both in this favorable opinion of their merits, and
in their unfavorable opinion of the convention; and should
accordingly proceed to form them into a second convention,
with full powers, and for the express purpose of revising and
remoulding the work of the first. Were the experiment to be
seriously made, though it required some effort to view it seriously
even in fiction, I leave it to be decided by the sample of
opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely
from their example, as in the discord and ferment that would
mark their own deliberations; and whether the Constitution,
now before the public, would not stand as fair a chance for
immortality, as Lycurgus gave to that of Sparta, by making
its change to depend on his own return from exile and death,
if it were to be immediately adopted, and were to continue
in force, not until a BETTER, but until ANOTHER should be agreed
upon by this new assembly of lawgivers.

It is a matter both of wonder and regret, that those who raise
so many objections against the new Constitution should never
call to mind the defects of that which is to be exchanged for
it. It is not necessary that the former should be perfect;
it is sufficient that the latter is more imperfect. No man
would refuse to give brass for silver or gold, because the
latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious
building, because the latter had not a porch to it, or because
some of the rooms might be a little larger or smaller, or the
ceilings a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not
manifest that most of the capital objections urged against
the new system lie with tenfold weight against the existing
Confederation? Is an indefinite power to raise money dangerous
in the hands of the federal government? The present Congress
can make requisitions to any amount they please, and the States
are constitutionally bound to furnish them; they can emit bills
of credit as long as they will pay for the paper; they can
borrow, both abroad and at home, as long as a shilling will
be lent. Is an indefinite power to raise troops dangerous?
The Confederation gives to Congress that power also; and they
have already begun to make use of it. Is it improper and unsafe
to intermix the different powers of government in the same
body of men? Congress, a single body of men, are the sole depositary
of all the federal powers. Is it particularly dangerous to
give the keys of the treasury, and the command of the army,
into the same hands? The Confederation places them both in
the hands of Congress. Is a bill of rights essential to liberty?
The Confederation has no bill of rights. Is it an objection
against the new Constitution, that it empowers the Senate,
with the concurrence of the Executive, to make treaties which
are to be the laws of the land? The existing Congress, without
any such control, can make treaties which they themselves have
declared, and most of the States have recognized, to be the
supreme law of the land. Is the importation of slaves permitted
by the new Constitution for twenty years? By the old it is
permitted forever.

I shall be told, that however dangerous this mixture of powers
may be in theory, it is rendered harmless by the dependence
of Congress on the State for the means of carrying them into
practice; that however large the mass of powers may be, it
is in fact a lifeless mass. Then, say I, in the first place,
that the Confederation is chargeable with the still greater
folly of declaring certain powers in the federal government
to be absolutely necessary, and at the same time rendering
them absolutely nugatory; and, in the next place, that if the
Union is to continue, and no better government be substituted,
effective powers must either be granted to, or assumed by,
the existing Congress; in either of which events, the contrast
just stated will hold good. But this is not all. Out of this
lifeless mass has already grown an excrescent power, which
tends to realize all the dangers that can be apprehended from
a defective construction of the supreme government of the Union.
It is now no longer a point of speculation and hope, that the
Western territory is a mine of vast wealth to the United States;
and although it is not of such a nature as to extricate them
from their present distresses, or for some time to come, to
yield any regular supplies for the public expenses, yet must
it hereafter be able, under proper management, both to effect
a gradual discharge of the domestic debt, and to furnish, for
a certain period, liberal tributes to the federal treasury.
A very large proportion of this fund has been already surrendered
by individual States; and it may with reason be expected that
the remaining States will not persist in withholding similar
proofs of their equity and generosity. We may calculate, therefore,
that a rich and fertile country, of an area equal to the inhabited
extent of the United States, will soon become a national stock.
Congress have assumed the administration of this stock. They
have begun to render it productive. Congress have undertaken
to do more: they have proceeded to form new States, to erect
temporary governments, to appoint officers for them, and to
prescribe the conditions on which such States shall be admitted
into the Confederacy. All this has been done; and done without
the least color of constitutional authority. Yet no blame has
been whispered; no alarm has been sounded. A GREAT and INDEPENDENT
fund of revenue is passing into the hands of a SINGLE BODY
of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate
money to their support for an INDEFINITE PERIOD OF TIME. And
yet there are men, who have not only been silent spectators
of this prospect, but who are advocates for the system which
exhibits it; and, at the same time, urge against the new system
the objections which we have heard. Would they not act with
more consistency, in urging the establishment of the latter,
as no less necessary to guard the Union against the future
powers and resources of a body constructed like the existing
Congress, than to save it from the dangers threatened by the
present impotency of that Assembly?

I mean not, by any thing here said, to throw censure on the
measures which have been pursued by Congress. I am sensible
they could not have done otherwise. The public interest, the
necessity of the case, imposed upon them the task of overleaping
their constitutional limits. But is not the fact an alarming
proof of the danger resulting from a government which does
not possess regular powers commensurate to its objects? A dissolution
or usurpation is the dreadful dilemma to which it is continually
exposed.